The Supreme Court has dismissed an appeal by Kilkenny Community Communications Cooperative Society Limited seeking discovery of part of a confidential bid annex in its judicial review challenge to a local radio contract award.
The appeal concerned an interlocutory application for documents, not the merits of the judicial review. The society had held the sound broadcasting contract for County Kilkenny. Its seven-year term was due to expire in September 2003, with no contractual right to renewal. A new franchise covering Carlow and Kilkenny was awarded to CK Broadcasting Limited.
The Broadcasting Commission of Ireland said the society did not appear to have the same level of relevant experience, expertise and local knowledge as the successful applicant group. In an affidavit, the Commission’s chief executive said CK Broadcasting had identified, in a commercially sensitive annex, two additional people with extensive relevant experience and local knowledge. The society sought only the part of the annex identifying those people.
The society argued that the identities could show that the successful bid relied on its own staff, which it said would make the Commission’s decision irrational. It also alleged that the notice party and staff might have acted unlawfully by inducing a breach of contract. Those were the society’s claims; the Supreme Court did not determine whether any employee had agreed to join CK Broadcasting or whether any contract had been breached.
Delivering judgment on 31 July 2003, Mr Justice Geoghegan agreed with the High Court’s refusal of discovery. The High Court had found that the identities would not help resolve the pleaded question: whether the Commission had information or evidence on which it could reasonably make its decision. It had no evidence about the employees’ contracts or an anticipated breach, and the alleged conspiracy was not pleaded as an issue for determination.
The Supreme Court said there was no evidence that the Commission had failed to disclose the material and reasons before it, subject to its right to preserve the annex’s confidentiality. Nor was there a prima facie case of wrongdoing that would justify discovery. It described the request as an irrelevant and futile fishing exercise in the context of the society’s concern that its employees might transfer to the successful bidder.
The court stressed that it was deciding only the discovery appeal. It expressed no view on the merits of the underlying judicial review and dismissed the appeal.